The Right Way to Fix Copyright

Since 1790, copyright in America has moved reliably in the direction of longer terms and stronger enforcement without much public outcry or legislative opposition. Until this year.

In May of 2011, a new copyright bill passed the House Judiciary Committee with little fanfare, and was expected to sail through congress with the rare bipartisan support copyright bills tend to engender. In particular, this bill extended some of the powers granted under the Bush-era PRO-IP Act, and charged Internet Service Providers (ISPs) with the responsibility to police foreign websites involved in alleged copyright infringement. The tech industry began to sound the alarm about its unintended consequences when the bill was introduced in the House, and after much fanfare and the largest internet blackout in history, it was killed.

The effort to stop SOPA was a watershed moment for two reasons. First, it was successful, unlike every other attempt to oppose copyright expansion. Second, it had the wide support of Tea Party conservatives and libertarians, marking the first time any significant faction on the right has taken a strong stance on intellectual property. To Jerry Brito, tech policy chief at the Mercatus Center, that was a sign the time was right to make the free-market case for copyright reform. The result is a new volume entitled Copyright Unbalanced, which argues persuasively that the proper conservative and libertarian position is to oppose what the copyright system has grown into.

It’s worth noting what the book isn’t. It isn’t one of those effusive paeans to Internet-enabled free culture, popular circa 2004. Its arguments arise from familiar first principles, that copyright and the means used to enforce it are corrosive of the rule of law, free markets, and innovation.

IP can be an especially difficult issue among conservatives and libertarians because they approach it from several different perspectives. There are those who treat copyright as a natural right, like Ayn Rand, there are those who support limited copyright to provision a public good, and there are those that oppose the institution entirely on the grounds that it is an artificial government-granted monopoly. Moreover the more pragmatic view is utilitarian, never comfortable rhetorical ground for the right, though in this case it jibes best with Constitution’s authorization of copyright “To promote the Progress of Science and useful Arts.” From whatever perspective they might agree (1) copyright must have limits, and (2) that the current copyright regime, as in the book’s title, lacks balance. On the details, Brito writes they might find “agreement about the excesses and deficiencies of our current system,” such as excessive criminal penalties or enforcement tactics that undermine the Internet, and they “may also find that we are best situated to lead a reform.”

That latter point is important when you consider the political context. One might even call it the inevitable conclusion of these essays. The Republican Party, that unreliable champion of the free market, only stands to gain by making copyright a partisan issue, and this book assures they can do it without compromising their principles. By forcing a debate on an issue where there was once a bipartisan lobbyist-driven consensus, they could split the Democratic fundraising hubs of Silicon Valley and Hollywood (the former tending to be in favor of a more open approach to IP) and begin to build a more congenial relationship with young people and the tech community.

As National Review’s Reihan Salam and strategist Patrick Ruffini point out in their co-authored chapter, it was House Majority Leader Eric Cantor that denied SOPA a floor vote, and progressive Democrat Al Franken that clung to it until the bitter end. Though some Democratic constituencies care deeply about copyright reform, contributions from Hollywood and the content industry are enough to buy the quiescence of all but one or two legislators. In contrast, conservatives were “quicker to rally to the side of the rebels” during the SOPA debate.

There are deeper cultural factors at work behind the recent spat of IP-skepticism, among them the rise of the internet as the main medium of entertainment consumption. The dominant players of the music and film industries have declined in influence for reasons that can’t entirely be attributed to piracy, even as the industry as a whole has grown. Since embattled interests tend to lobby for government privileges more than healthy, competitive ones, the result tends to benefit incumbent players. For copyright this dynamic is obvious; an iconic song languishing in some long-dead musician’s estate, or a remix artist spending hundreds of dollars to clear a five-second sample.

Eli Dourado’s chapter on “weak copyright enforcement” takes stock of these changes, observing that some businesses intentionally allow a certain amount of “infringement,” not as a grocer budgets for loss from shoplifting, but as a form of price discrimination. The New York Times, for example, has an interest in maintaining its subscription base but also in being as widely read and widely cited as possible, and its paywall is designed to accommodate both goals. That success, Dourado writes, is evidence of the “need to embrace a stronger role for informal norms than for formal law to ensure that content producers are compensated,” an approach contrasts sharply with that of the DMCA, under which ripping DVDs or, say, creating a software patch to circumvent the Times paywall could be treated as a criminal offense.

Though most of the contributors take a consensus-building, big-tent approach to copyright, Tom Bell’s final chapter might raise the hackles of those who consider government-enforced exclusivity in creative works a natural right. He argues for no less than reconceiving the institution as a privilege, rather than property, and proposes some fairly radical reforms like returning to the 1790 copyright act, withdrawing the U.S. from the Berne Convention, and basing copyright policy on its cost to consumers rather than its benefit to industries.

A few weeks before the book was set for release the GOP made an ultimately illusory feint towards just this sort of privilege-over-property approach. The Republican Study Committee published a widely-praised paper describing copyright as an overgrown regulatory scheme rather than a right worth protecting at any cost, a political gambit Matt Yglesias described as a “fascinating move on the coalitional chessboard.” Writing at the popular law blog Volokh Conspiracy, former DHS Asst. Secretary for Policy Stewart Baker called the memo “the most head-turning change of direction in decades for either party on intellectual property issues.”

Alas, within 24 hours the RSC retracted the brief and (implausibly) denied that it had ever been officially approved. After pressure from Nashville Republican Marsha Blackburn, who receives thousands of dollars in campaign contributions from the industry and whose chief of staff is a former RIAA lobbyist, Derek Khanna, the staffer who authored the paper, was promptly fired. The MPAA and RIAA hit the phones after the memo’s release, Ars Technica’s Timothy Lee (who also contributes a chapter) reported, and members weighing in on individual staffing decisions at the RSC, bespeaks desperation on the industry’s part. They know they’re fighting a rear-guard action, against new modes of distribution, against a growing but decentralizing entertainment market, and against backlash to their ever-increasing government privileges, which is why it was so important to shut down any discussion at all.

Call it the Streisand Effect or Pandora’s Box or what have you, but that strategy isn’t likely to work. Conservative bloggers generally support some kind of IP reform, there’s next to nobody in the right-wing intellectual universe that will make a robust defense of the current copyright regime, and the electoral benefits to taking up the issue have increased. As Virginia Postrel wrote, Khanna’s paper “was a harbinger of what promises to be a sustained and substantial critique of today’s copyright regime from intellectuals and activists on the right.” This book is the second salvo.

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22 Responses to The Right Way to Fix Copyright

Hollywood clearly wants strict copyright laws, but unlike this article claims so does Silicon valley, any threat to a Silicon valley business from competition from others is quickly met by sending IP lawyers to counter them.

Even if Republicans do actually support every IP idea popular in Silicon valley I doubt this will lead to any growth of support.

In my mind there is still this blurring of the distinction of reform erses removal. And Your reveiw says reform as in change. I am reading heavy handed support for removal.

While, I have no qualms with reform, removal is an easy answer: No.

It is also disturbing that I have not read a specific reform: What? Why? Outcomes? The entire movement appears to operate as the ‘occupy’ contingent. Long on complaint, not much in a specific suggestion and consequences. I do understand that I am being redundant.

Actually, those of us over on the liberal side have been squawking about IP problems for years. Want to see a bunch of people who really think copyright needs to be redone? Law professors and other IP practioners. We see all the mess of the system, close up.

My opinion? Go back to the two twenty-eight year terms and add extra fees at the 10 year dates, like what we have in trademarks. If your copyright isn’t worth enough for you to pay for it, you don’t get to hold on to it. And once it enters the public domain, no backsies. It’s now public domain forever.

As someone who has been publicly complaining for several years about copyright in particular as well as “intellectual property” in general I agree that this year seems to have been a turning point although I do not know why. Perhaps the revolt against copyright as it stands today, a weapon deployed by major media companies and their armies of lawyers, is part of the more general populist anti-corporatist sentiment demonstrated by the “occupy” movement — although that is counter to Jordon Bloom’s perception that it is more a creature of the right than the left. I believe the issue now is a toss ball ready to be owned by whichever party or ideology faction is willing to move most quickly to take possession.

Intellectual property differs from real property because of its infinitely reproducible aspect. It’s not like a loaf of bread–if I copy your book, you still have it.

So rather than arguing for an infinite lifetime, maybe we should argue why you should have copyright at all.

(And in fact, under present law you DO have copyright for a lifetime. Your lifetime plus 70 years, in fact. Your heirs can squabble over the great products of your imagination, loaf on their backsides benefiting from your efforts, and never lift a hand to feed themselves. Ain’t copyright grand?)

EliteCommInc.
The first problem is how IP is used to protect absurd things, take the recent Apple case against Samsung, one of the things that Samsung supposedly stole was the rectangular shaped phone with curved edges “design”, that would be equivalent to you writing in your book about a blonde femme fatale and claiming no one can use a similar character. The second problem is that all human inventions ultimately depend on older inventions, if we had to apply correct IP to every single thing we do, we would have a 100 lawyers per inventor just to make sure we are not violating some prior invention.

“We are in a sense living through a cultural war in which some who’ve chosen [distribution] are waging a symbolic struggle against those who’ve chosen [creation] — the object is to devalue [creation], to characterize [profiting from] it as “greedy,” etc… Naturally, risk-averse people and people who are inclined to embrace the “greed” narrative are more inclined to [see copyright as a government franchise] while risk-taking people who, say, like the idea of achieving some modicum of economic stability for their families by building their private wealth will be more inclined to sort into [think they have a natural right to the fruits of their initiative].”

I write software for a living. I am conservative. I often read internet articles related to copyright because it scares me what can happen to my work.

If I work for a year or two to create a piece of software that I hope to make some money from, I fear that the instant I make it available to the public for sale another company with far greater resources than I have will 1) copy it, 2) supply an accounting department, marketing, sales, legal department, tech department, 10 to 12 programmers to sprucen it up, 3) before I make anything substantial because I’m loaded down with (accounting, finance, marketing, sales, legal, etc) they have zoomed away with all of the “first to market” privileges.

In other words they have used my programming services for free (instead of hiring a programmer themselves).

IP can be an especially difficult issue among conservatives and libertarians because they approach it from several different perspectives. There are those who treat copyright as a natural right, like Ayn Rand, there are those who support limited copyright to provision a public good, and there are those that oppose the institution entirely on the grounds that it is an artificial government-granted monopoly.

There are also, I have no doubt, those who want to go back to the situation in the 1800s, when the U.S. as was notorious for book piracy as China is today for patent and trademark piracy, since the U.S. did not recognize foreign copyrights.

As EliteCommInc. notes, IP “reformers” are very short on specifics, and tend to sound like “occupiers”–or what IT news source The Register refers to as “freetards”. I would say that there are also a lot of well-connected aspiring thieves in the crowd. (Think Google, for one.)

Suppose you make your living producing things that, if they are any good at all, might remain useful indefinitely. (Unlike the radical dynamic obsolescence that characterizes the hi-tech industries and pop culture, for instance.) Suppose that in some cases their value might not be recognized for years after they were created. Suppose that some products took years to complete. Suppose that, given the above, a living wage was not guaranteed to any half-competent practitioner, as is the present case with, say, much of IT. Suppose that, given the above, you weren’t able to provide for your children as well as you might have if you had taken up one of the many non-productive occupations and legal con games, such as bureaucrat, hedge-fund operator, community organizer, or tort lawyer. In that case, both the extreme freetards and the “moderate” freetards might have different ideas about a lifetime-plus copyright.

I believe the IP reform movement is using the OWS/Tea Party manual of “There’s something wrong here. We need to talk!”

There HAVE been individuals giving out lots of specifics on what to change: A lot tend to lean towards just shortening the time and allowing more items like Satire to fit in Fair Use. The main idea, though, is to start the conversation with “There’s something wrong with copyright. What can be done to fix it?” Any movement that doesn’t have a ‘lead’ setting the policy will end up with that style of message.

sidenote: beyond a few radicals who cry out “EVERYTHING SHOULD BE FREE!” I haven’t heard one case of someone who actually advocated removing copyright. Right and Left agree that copyright was desired by the Founders, and that we should have a copyright law.

Just not the one we have right now.

As far as copyright itself, I believe it should be based on profitable use: if you are still profiting, it’s still yours. That actually benefits Disney since it means Micky Mouse remains theirs until they stop using it, to which it goes on a 10 year timer. A team can re-release it or make something new to reset the timer.

Disney owning MM until the end of time is not a problem. it becomes an issue when a company grabs an IP then just sits on it, not producing anything and not letting anyone else produce from it. Some comic book IP movie rights are under this limbo before the comic book industry got wise and set term licences (that’s a reason why you keep seeing superhero movies lately). The gaming industry is a mess with this to the point where the original creators cannot produce more of their original ideas since the IP transferred to a publisher and the publisher refuses to sell it back or do anything new with it. Setting the timer at least forces the IP to be used or, if really mothballed, moves it to public domain. The ‘reset’ means the company can simply release the product so that the public can access it again if the company wants to keep it. Of course the legalize would need to be more complicated (what’s considered a ‘release’, ext.)

I also believe there’s a major issue with Patents (in fact, I think a lot of folks who want ‘copyright reform’ are really thinking about the Patent system). Actually, there’s a ton of issues. Fixing it is beyond my knowledge, though, but I would like that debate to be made among those who do understand the system.

sidenote: Can we please not resort to insults (i.e. ‘freetards’)? I’ve heard the arguments that ‘this is the internet, so grow a thick skin.’ However, Youtube comments and most news sites are what ‘the internet’ really is. This place is very ‘uninternet’ in how often it sparks and continues deep debate over its comments.

We DON’T need to bring internet logic into this with insults and attacks on the authors of these comments. If they are wrong, attack the argument itself and show why it’s wrong. Leave how much you despise or belittle the ones what believe it to NPR message boards.

How is copyright or patent a natural right? Without the presence of the state to grant and enforce the monopoly of copyright there is no right.
The Constitution has it right, copyright and patent are public goods that spur innovation and investment. The problem becomes balance, the granting of the monopoly must be done with an eye towards maximizing the benefits while limiting the interference of the state. Granting monopolies must be done thoughtfully and humbly.
Current law is too cavalier both in the terms of the length of the monopoly granted and in the breadth and depth of the monopoly grant. When we begin allowing copyright and patent for business practices or a few lines of computer code or for matters as narrow as simple design as in the case of the Samsung – Apple battle then we wander into territory of actually stifling the very public goods that we sought to promote in the first place.

The suggestion that my ownership should be based on profitability is a bit misleading. Because it suggests that if someone in some point of it unprofitable condition couyld claim ownership and or use it without my consent or knowledge. That idea seems to undermine the profitability argument, because profitability is always dependent on usage at some time: now or in the future. Which is the point of ownership, my programs may not earn a profit now, but atsome point they may and I am entitled to recognition from their usefulness, to include financial compensation. But I do appreciate that a specific example was provided.

I have a web page that is for thoise interested in using my services. It is private for a reason. I am not concerned about its lack of traffic. Because it is not designed for public use. It is not a gateway for anything to anyone aside from my clientele.

To suggest that I should forego my intent to please your desire to obtain a rarely used space does not make much sense to me.It is designed for exclusivity.

Patents and IP reform . . . again, I am left with what is the specific complaint.

Now I am in a hurry to insure the maintenance of my domain name and sight.

I do agree Google is the worst. I am single and a SAG member, I do not appreciate my image being confiscated from a private sight and distributed around the globe, especially to entice pay for internet dating — sound like a residual fee violation to me.

Imagined products of my own mind . . . in the mind is where are products are first imagined and brought from to brign something useful to the rest of us. I cannot quibble over how the owner spends his profits anymore that I could quibble how the person who works for a creator and benefits from same spends his.

Whether his progent fusses over it and spends their days yachting is afterall the real purpose for profit, to pay my bills and if I have chilkdren provide for them.

The problem is the scope of the “rights” in this country. I used to work for a company in the medical products field and they would have their main patents displayed all around the company. I would be amazed at how much was patentable that seemed to be run of the mill engineering.

There were things like circuits to count some activity. Simply because it related to the heart and was never patented before it was somehow significant when it was simply the standard counting circuit every EE employs in his job using standard off the shelf digital and analog components. This should not be patentable. The only purpose of patenting this is so that other companies have to pay you royalties to enter the marketplace.

Had something in the circuit been truly unique like using magnetic effects instead of plain old voltage to determine the activity to measure, (assuming this was truly novel and significant in some way) it might be patentable as it would be something that would truly be a breakthrough and set your device apart from the rest of the pack.

my programs may not earn a profit now, but atsome point they may and I am entitled to recognition from their usefulness, to include financial compensation.

I agree that you should receive compensation for the work that you have done, and that it should extend over a period of time, including perhaps past your lifetime and into the lifetimes of your children. But the fact that you created something valuable and profitable shouldn’t mean that your grandchildren and great-grandchildren don’t have to work for a living. There has to come a point where the royalties stop.